Hill surveillance reform: Time is not on its side

Surveillance reformers on Capitol Hill are up against a wall — and short on time.

The USA Freedom Act, the Hill’s preeminent measure to curb NSA authority in the wake of Edward Snowden’s leaks, cleared the House and has been waiting to see movement in the Senate as advocates in and out of Congress try to navigate a tough negotiating landscape. Privacy advocates and intelligence hawks primarily disagree over how best to end the government’s bulk phone records program.

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But a diminishing resource in an election year may be an even bigger factor as to whether anything gets done on that and other surveillance questions — the calendar. Lawmakers won’t be around the Beltway in August, and much of the Senate will be in full-on election mode by September.

That reality isn’t lost on the bill’s supporters. Senate Judiciary Chairman Patrick Leahy (D-Vt.), the measure’s top sponsor in the upper chamber, is considering an attempt to bring the bill straight to the Senate floor. The Judiciary Committee has held several hearings on surveillance reforms this Congress but hasn’t yet scheduled a markup.

Leahy “has been calling for these reforms for years and is working to ensure the Senate seizes on this historic opportunity to pass real reform this work period,” one of his aides said.

Majority Leader Harry Reid (D-Nev.) doesn’t have a floor plan for the surveillance bill yet, a Senate leadership aide said last week. While surveillance reform has become a higher-profile issue since the White House endorsed major changes to its call records program in January, Reid also is facing pressing debates on highway funding and the Export-Import Bank — not to mention supporting his Democratic colleagues trying to retain their seats in a tough election year. Add in a desire for a legislative fix to the Supreme Court’s Hobby Lobby decision, and the surveillance timeline becomes more narrow.

“That’s a good question, and I can’t really tell you,” Senate Intelligence Chairwoman Dianne Feinstein (D-Calif.) said when asked about the bill’s chances to clear the Senate this year.

The main focus for negotiators on Capitol Hill, in the administration and among privacy advocates remains how the bill ends the government’s bulk phone records program — the subject of the first Snowden stories last summer. The measure would allow the government to ask phone companies for call records relevant to particular investigations, rather than automatically receiving all the records generated each day. But privacy advocates contend — and some lawmakers concur — that the legislative approach used in the bill won’t actually stop the government from getting information on more Americans than it needs.

Would-be reformers have a tough needle to thread: The White House and NSA defenders in Congress already support the current language. That means there’s little room to strengthen the measure’s protection against bulk collection and still keep the intelligence community happy.

As Senate aides and lawmakers grapple with the pending bill, discussions also continue outside of Congress. Civil liberties groups and the White House have engaged each other more directly than during House negotiations in May, meeting to debate the bill last week, according to a source familiar with the discussion.

“The administration supports the USA Freedom Act, but is willing to work on specific modifications to the House-passed bill,” White House spokeswoman Caitlin Hayden said in a statement. She declined to provide specifics.

Separately, the NSA’s communications content collection programs have gotten more attention in the past several weeks, including a surprising House vote on an appropriations amendment that bans funding from being used to search its databases for American data without a warrant — or what critics call the “backdoor search loophole.”

“I am going to try to close the backdoor search loophole on every possible relevant vehicle, and I’m quite certain Sen. [Mark] Udall and Sen. [Rand] Paul and many others will all be part of a very significant bipartisan effort,” said Sen. Ron Wyden (D-Ore.).

That will not be a quick fix. The Senate amendments process has been tightly controlled by leadership this year, and while reforms of the relevant statute — section 702 of the Foreign Intelligence Surveillance Act — are certainly on the minds of privacy hawks, the main focus for privacy groups and many lawmakers remains ending bulk data collection. Plus, Appropriations Committee Chairwoman Barbara Mikulski (D-Md.) is unlikely to back major changes to Foreign Intelligence Surveillance Act programs.

Ultimately, the landscape reflects the tall task of striking harmony between privacy hawks and national security hard-liners. Even if civil liberties-minded senators could get a more aggressive reform bill through the upper chamber over the objections of NSA defenders, it’d be a long shot to win favor from the administration or in the House.

There’s no end-of-the-year deadline forcing lawmakers to act this Congress, but advocates want to capitalize on momentum from Snowden’s leaks and the president’s NSA speech. And NSA defenders may feel pressure to act this year before negotiations bleed into the June 2015 expiration of authority for the agency’s current call detail records program.